I have just received my February 2007 issue of Genii Magazine. In his review of Christian Chelman's book "Hauntiques", Michael Close writes that he has "no idea what "non-renumbered" means in this context". Although the satement seems quite clear to me, I can shed some light on this. The above sentence about "non-renumbered" performances means that you must ask Christian for permission to use the "routines, texts, documents and stories" from the book for every paid performance, wether live or on tv. I hope this helps...

I haven't read this issue yet so I haven't seen the review, but by the above post it appears to me that the author is saying that even though he made his routines available for the public the purchaser must still seek permission before performing the routines.Is that correct or am I Reading it wrong?

it appears to me that the author is saying that even though he made his routines available for the public the purchaser must still seek permission before performing the routines.Is that correct or am I Reading it wrong?

Gord,

This is not correct: Mr. Chelman (who may elaborate on this forum, if he feels to... he sometimes writes in here) grants permission for the performance of the routines if you are not charging for your performance. If you are being paid to perform Mr. Chelman's routines, you still may do it, but you should inform him of your intention. This is fairly clear (I hope!) in the book, save for the syntax error :(

It's absolutely correct, you must be granted permission to perform my effects for a public/ paying audience and on television.But I don't care if you perform in the strict intimacy of your family and/or friends.It's not only strict politeness, it's also the law.If you ask Michael Chrichton the permission to use his novel 'Jurassic Park' to make a movie, you must also ask his permission and pay big fees...On the other side, you don't need to ask any kind of permission to use principles and manipulations like the Blitz or the phantom shuffle.

Just out of curiosity, at what point does a buyer learn of this policy? If I recall, Bruce Cervon's book, "Ultra Cervon," had a performance policy along these lines, but wasn't it printed inside the book? It also prompted discussion.

My all time favorite statement of rights is found inside Michael Weber's "Life Savers."

One thing to remember is that the author or publisher of a book can make any kind of statement in the book he or she wishes: that doesn't automatically give any legal validity to it.

I don't believe that any legal case has been tried, therefore establishing a precedent, where a notice of performance limitations in a magic book has been ignored and the author has sued or taken legal action.

Also, the rights of the author or artist to make such a statement with legal validity (if such a thing is even possible) would vary from country to country. For example, while Mr. Chelman might be able to succesfully prosecute someone in France for performing the tricks explained in Hautiques in a paying performance (whether on TV or not), it is doubtful (even if he was successful in that country) that he would be successful attempting a similar course of action in the United States.

One of the few legal precedents in this area was a case by Think-a-Drink Hoffman where he sued someone for copying his act. (This was discussed by attorney Warren Kaps in, I think, MUM.) I believe the judge ruled that, in essence, if you don't want anyone copying your material, then you shouldn't perform it in public. Perhaps Warren will come on and clarify the position.

Anyway, I keep waiting for one of these cases to actually be tried in court so some precedent can be set so we'll know if these sorts of performance restrictions are something that need to be observed or if they're just posturing [censored].

If ... he had said "non-renumerated" instead of "non-renumbered," it would make more sense to me.

Maybe "renumbered" was a spell-checker casualty? "Renumerate" is not a word, at least not in the English language. :)

If anyone watched bits of the Anna Nicole Smith legal proceedings last week, they got to hear several well-educated (?) individuals butcher the English language, including using the "word" renumeration when they wanted to discuss the payment of money or other consideration.

This, of course, leads to an interesting question.Will these restrictions stop anyone from buying the book?Having not read the review, or the book, I don't have an opinion either way, but I was wondering what others think.

Almost all the routines are linked to texts and scripts. I'm still looking for a country where you can steal an artist's work (example of Michael Chrichton's books) and make a play or a movie without paying dues.I prosecuted once a guy in France who stole some of my material, and I won... enough money to be happy.On the other side, if you use some of my methods/techniques, with your own texts and artifacts, I don't consider being copied.You may get inspiration from my work, and the books are written for that reason, but stealing material is something different.It's not only very impolite and undelicate but can be sued. :genii:

"My all time favorite statement of rights is found inside Michael Weber's "Life Savers.""

John,

Weber's statement was printed in giant type on the outside back cover of my copy (and I didn't pay $200 for it!) And anyway, look where it got him, how many ripoff Bottle Cap in Bottle routines were put out and sold?

Neither did I, because I purchased my copy from Dick Hatch at H&R Magic Books. (Just another in my endless list of reasons I shamelessly shove people in their direction anytime anyone even suggests they need a magic book.)

Traditionally, magic routines that have been published for the trade have automatically granted permission for the work to be performed. If a scripted presentation was included, the performer was usually told to adapt the presentation to his personality, but no restrictions were imposed by the creator. You bought a book or a DVD and you could copy the presentation verbatim.

There have been a number of books over the years that simply explained the effect and its workings, leaving the precise presentation to be developed by each performer. Apparently, Christian Chelman chose not to do that.

So, he requires buyers of his book to ask permission for the use of his material in paid performances. Asking permission gives him the power to say no, but nothing has been said about what happens if permission is denied and the performance takes place anyway.

In my view (and while I'm not a lawyer I know a little bit about contracts), if I bought the book directly from Chelman and he explained to me in advance under what circumstances I was buying the book and I signed a contract to that effect, then I would be bound by the terms of that contract. Simple.

However, if I buy the book from a third party, a bookseller (who probably bought the book from a distributor) or someone who bought the book directly from Chelman, they are not in any way acting as Chelmans agent. I sign no contract with them acknowledging my agreement with Chelmans conditions of purchase. I'm bound by nothing. Christian Chelman may want people to ask permission, and they may if they want, but since there is no contract, the exercise has no meaning.

Then there is the idea of enforcement. How is that possible for non-television performances on the other side of the world?

Finally, the example of copyrighted material in books being used for other purposes has been brought up. Fine, lets go to that.

When I owned a small publishing company I licensed material from several major New York publishers. In every contract the publishers warranted that they had the right to license the material and in giving me that right they guaranteed that they would protect the value of that right by enforcing the exclusivity granted to me for the contracted time period.

Should I buy into this nonsense and pay a fee to Chelman for performance rights, in granting a license Chelman acknowledges that he is granting me something of value. For it to be of value to me it must be limited in some manner. That means for my purchase of rights to have and maintain the value that Chelman charged me he must act against all who violate the rights he has granted to me and others. That means lawsuits against everyone who performs his material without permission, otherwise a fee paid is money for nothing.

The third party reseller cannot transfer anything to you that the original buyer did not originally own and then transfer to him.

If you were not made sufficiently aware of this state of affairs,(you sincerely thought you were buying a used $40 book for $20 and were expecting to receive full performance rights for your next television show)you might have a claim to get your $20 bucks back. That's it.

Intelectual property rights are designed to be "bundles of rights" that can be split apart and granted, or not granted subject to agreements.

So, it is actually possible that I may be able to buy an original painting and not have the right to put it on "Public" display, or make a print of it, or sell postcards of it - even though I own the one and only painting.

We are quickly moving into an age where EVERYONE is their own broadcaster with YouTube and other similar medium. I promise you that the top creators in magic actively protect their product. If you choose to knowingly violate the agreement with Chelman or any other creator who places open limitations on the use of their work, I suspect that Chelman will only actively pursue you if your performance is very succesful (commercially) or sub-standard.

I think the overlooked issue here is the assertion that an agreement has been made. That, somehow, by purchasing the book the buyer has entered into a contract that is only discovered upon reading the book.

This is not just an issue for magic, it applies to many other media. See The Small Print Project for more info.

One of the few legal precedents in this area was a case by Think-a-Drink Hoffman where he sued someone for copying his act. (This was discussed by attorney Warren Kaps in, I think, MUM.) I believe the judge ruled that, in essence, if you don't want anyone copying your material, then you shouldn't perform it in public.

On the other hand - this was before the choreography copyright law: Copyright of Choreographic WorksAs the definitions are written vague to allow even the oddest performance art, it should be quite easy to find grounds to include covert magic choreography as well.

So, he requires buyers of his book to ask permission for the use of his material in paid performances.

I find it odd that this is considered a bad thing.

First of all, if I understood it correctly, this is mainly routines that Christian has developed for his own use, in his own performances. The Catch-22 is that his work can't be protected if it isn't documented. Since 90% of all those with an interest in bizarre magic is amateurs, Christian's own performances will not be affected by sharing it with them.

The rest? I guess that there might be a total of 20 people worldwide that would have an interest and opportunity to perform these pieces on TV or in paid performances. Surely, with pieces this specific, isn't it a valid request to keep Christian informed? Not just only for his sake. If he is informed that you plan to perform one of his pieces on TV, he can warn you if another performer in the area has planned to perform the same piece on another channel the day before you.

If it means I have to pay so that he can protect them, and can only use them under some undisclosed conditions, then yes, I would prefer it not to be published.

How much of a change to the published material would be enough (if I perform it in a different language in my own style, but basically doing the same routine - is that enough?) for the creator? Who would decide if the change is enough?

The third party reseller cannot transfer anything to you that the original buyer did not originally own and then transfer to him.

If you were not made sufficiently aware of this state of affairs,(you sincerely thought you were buying a used $40 book for $20 and were expecting to receive full performance rights for your next television show)you might have a claim to get your $20 bucks back. That's it.

Intelectual property rights are designed to be "bundles of rights" that can be split apart and granted, or not granted subject to agreements.

So, it is actually possible that I may be able to buy an original painting and not have the right to put it on "Public" display, or make a print of it, or sell postcards of it - even though I own the one and only painting.

We are quickly moving into an age where EVERYONE is their own broadcaster with YouTube and other similar medium. I promise you that the top creators in magic actively protect their product. If you choose to knowingly violate the agreement with Chelman or any other creator who places open limitations on the use of their work, I suspect that Chelman will only actively pursue you if your performance is very succesful (commercially) or sub-standard. ____________________________________________________

Lucca

In my working life I have created, licensed, bought and sold both intellectual property and IP rights. I well understand that those rights are granted through negotiated contracts with the owners of those IP rights not through the purchase of a book.

A contract is made up of several parts, all of which must be in place for a contract to exist. They are: offer and acceptance, consideration, and an intention to create legal relations by a meeting of the minds. None of these exist in the simple purchase of a book from a third or fourth party who is not acting as Chelmans agent with signed documentation between the parties indicating that everyone agrees to the terms of the contract. Signed contacts indicate a meeting of the minds of those involved and that all agree to the terms. Without all of those elements being present no one has agreed to anything and there is no contract.

Your logic fails when you erroneously claim that there is an agreement present with Chelman (or anyone for that matter) by the purchase of his bookor the receipt of his book as a gift or the purchase of his book through any other entity regardless of what the book might say and Chelman might claim.

You also claim that creators of magic will protect their rights. Really!? Where and how often has that happened? You cite YouTube, but how many posters on YouTube been sued by any creator of magic?

Finally, if you think that Christian Chelman or any creator of magic is going to pursue those who perform their creations in a sub-standard manner (whatever that means) then those creators of magic are going to be extremely busy for a very long time.

Tom Stone wrote:On the other hand - this was before the choreography copyright law: Copyright of Choreographic WorksAs the definitions are written vague to allow even the oddest performance art, it should be quite easy to find grounds to include covert magic choreography as well. ___________________________________

Unfortunately, a quick glance at the cited article indicates that since the law's inception - and the date of the article - there has been one case brought, it was appealed and sent back to the lower court where the matter was settled out of court.

Thus, there are no precedents set in the protection of choreography. Regardless, it would seem to be a real stretch to include a magic presentation under choreographic protection.

I really am confused by peoples reactions to what Christian is attempting to do. He is simply trying to protect his creations. If Willie Nelson records an album of his work his people go through the proper channels to copyright the songs. If you want to record those songs you pay Willie.

If David Mamet writes a play and you want to perform it FOR MONEY then you must pay for it.

Of course there are many people performing music and weddings and parties and not paying the proper royalties. Just like there are magicians out there performing other's routines.

We bitch and moan about magic not being taken seriously... that magic is an art... that magic is theater. Yet most people who call themselves magicians don't want to follow the models that the theatre world has put into place.

Interesting.

Somebody claimed there is no precedent for this in magic. Well magic is a theatrical presentation. I bet if you look into other theatrical ventures you will find a precedent. I am just saying...

I'm not saying that Chelman has no rights. What I've said repeatedly is that the mere purchase of a book does not automatically create a contract between the buyer of the book and Christian Chelman.

Does he have "performance rights" beyond copyright? Maybe...and maybe not. It depends on a lot of factors - the laws of the country where the supposed infraction occurred, precedents in the law.

Claiming a right exists does not make it so. This is why we have lawyers and courts, to settle questions like this. The most important question is: how much time and money Chelman is willing to spend to enforce rights he believes are his, and what, if any, damanges can he show for loss of those rights should a court agree that they exist?

Then theres the question that if he doesnt enforce the rights he thinks are his, does he lose them?

P. T., my understanding (which is not a deep one!) is that you would have to pay Mamet a royalty to perform one of his plays evern if you did not charge money for tickets. That seems to be the gist of the Samuel French link above, which quite explicitly states that such royalties are due "whether or not admission is charged." A search on their site pulls up several dozen Mamet plays and if you order multiple copies of the same play, they will add the royalty fee in advance, unless you tell them the copies are for "perusal only".

Of course he has. I see no reason to assume that magic creators alone would be without the same rights as creators within any other art.I mean, come on - a painter splashes some paint on a canvas by mistake - and it is protected for a lifetime. But if a magician put a year into the development of a performance piece, then he has no rights to his work at all?

It's just a matter of linguistics - finding the proper words, to be able to get the rights to be recognized legally - on a theoretical level, of course.

On the practical side - it doesn't matter at all what the law says. No-one cares about that anyway. In the end, it all depends on which part can affort the longest time in court, and whose lawyer are loudest. Legal matters don't matter on a practical level - never has.

Tom Stone wrote:Of course he has. I see no reason to assume that magic creators alone would be without the same rights as creators within any other art.I mean, come on - a painter splashes some paint on a canvas by mistake - and it is protected for a lifetime. But if a magician put a year into the development of a performance piece, then he has no rights to his work at all?

It's just a matter of linguistics - finding the proper words, to be able to get the rights to be recognized legally - on a theoretical level, of course.

On the practical side - it doesn't matter at all what the law says. No-one cares about that anyway. In the end, it all depends on which part can affort the longest time in court, and whose lawyer are loudest. Legal matters don't matter on a practical level - never has.

Both: A realised artistic idea communicated through human motion. Same thing. Identical. Claim it long enough, and loud enough - and it will become the truth. That's all it takes.___________________________________________

Well, the post above is filled with Tom Stone's opinion. It should be noted that an opinion is far different than a law and a legal fact. Tom's opinion has no force in law, which is what Im trying to talk about. My opinion has no force in law, either, but Im not making a claim that I have rights or contracts with people who buy my book.

If Christian Chelman, or any creator of magic effects/routines, wants to put forth a claim for rights, they should do so. They should enumerate those claims and by whatever theory of law or force of law they have as support for those rights. If those rights are to be licensed in a limited manner, which is what gives them value, then there should be some description of how Chelman will protect the value of the right granted. So far, no one has addressed that.

A painter creates something never seen before and is protected by copyright for his lifetime plus 75 years. An author writes a story and it is protected for the same amount of time. Stories or paintings may be similar in nature but ideas cannot be protected, only their expression and in limited ways.

While written expression is protected by copyright, does the publishing of the material to its niche market obviate copyright protections that may or may not have applied to the work when it comes to performance? Ive heard the vaguely-stated claims. Id like to see the statutes or the precedents that support the claims.

If the performance piece is derivative, how derivative is it? Does the creator use the principles and props of others to his end? Does this allow him to claim originality or is what hes worked up just old wine in new bottles?

The Elmsley Count was given to the world by Alex Elmsley, who, as the originator, was the only person who could protect it by whatever means were available to him at the time. However, I do not know if the protection of choreography will protect human movement when the result is realized through a secondary instrumentality beyond the human body. In the case of the Elmsley Count, said instrumentality being playing cards. Without the instrumentality, the movements realize nothing.

Toms example of Elmsley could be used for playing a musical instrument or painting a picture since the same human movements would produce the same result, but each would require an instrumentality for the realization of the art to happen.

Claim it long enough, and loud enough - and it will become the truth. That's all it takes.

Actually, no, not when you run into someone who wont be bullied or [censored].

While it may be nice, and courteous, and to some, moral, to ask and/or pay Christian Chelman (or anyone for that matter) for permission to perform routines from his book, the central unanswered question remains: Why should I have to pay when no contract or force of law exists and the tradition of magic publishing in 100 years of books, magazines, videos, and DVDs is against it?

The idea that the actions necessary to perform a magic trick are "choreography" and can be protected by copyright law may be suspect. Many of the movements to execute a trick are purely functional, and doing them is not an expression of the creativity that copyright law protects.